Heightened Pleading Requirements: Patent Reform through the Supreme Court and Judicial Conference

By Dennis Crouch

In the cases of Twombly (2007) and Iqbal (2009) (Twiqbal), the Supreme Court substantially raised the pleading standard for federal cases by requiring that the pleadings allege sufficient detail to demonstrate that their claims are “plausible.” These cases have had a dramatic impact on civil litigation in Federal courts. This is evidenced by the fact that these cases have been cited in over 10,000 decisions over the past few years.

Patentees filing infringement actions have not been directly affected by the modified precedent because of a quirk of federal civil procedure. The FRCP appendix includes a form patent infringement complaint and FRCP Rule 84 indicates that the “forms in the Appendix suffice under these rules.” The patent infringement complaint form (Form 18) is incredibly bare-bones and basically only requires an allegation that the plaintiff has rights in the patent and that the defendant is infringing the patent. Based upon the scheme set up by the Rules Enabling Act (1934), the Judicial Conference proposes any amendments to the rules of civil procedure; those proposals are then approved by the Supreme Court and then reviewed by Congress before becoming law.

Within the next couple of years, this form complaint rule is likely to change, either by action to change the rules proposed the Judicial Conference or else by Congressional legislation.

In fact, in the Judicial Conference Advisory Committee has already proposed elimination of FRCP Rule 84 and the form complaints. [Link] The result would be that Twiqbal would apply to patent infringement complaints. Although this change would not raise complaint pleading standards to that of the Goodlatte proposal, it still represents a major heightening of that initial pleading hurdle.

In its proposed rule change, the Judicial Conference Advisory Committee explains its proposal with reference to patent law:

A further reason to abrogate Rule 84 is the tension between the pleading forms and emerging pleading standards. The pleading forms were adopted in 1938 as an important means of educating bench and bar on the dramatic change in pleading standards effected by Rule 8(a)(2). They — and all the other forms — were elevated in 1948 from illustrations to a status that “suffice[s] under these rules.” Whatever else may be said, the ranges of topics covered by the pleading forms omit many of the categories of actions that comprise the bulk of today’s federal docket. And some of the forms have come to seem inadequate, particularly the Form 18 complaint for patent infringement. Attempting to modernize the existing forms, and perhaps to create new forms to address such claims as those arising under the antitrust laws (Twombly v. Bell Atlantic, 550 U.S. 544 (2007)) or implicating official immunity (Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009)), would be an imposing and precarious undertaking. Such an undertaking might be worthwhile if in recent years the pleading forms had provided meaningful guidance to the bar in formulating complaints, but they have not.

The point here is that the pleading standards are outdated and today offer a loophole for certain plaintiffs without any justification for such a loophole.

The committee goes on to make a clear misstatement that “few if any lawyers consult the forms when drafting complaints.” Rather, in the patent infringement world, it is knowledge of that form that serves as the basis for many patent complaints. However, that misstatement does not sink the proposal in any way.

The proposal here is at an early stage and is open for comments until February 15, 2014. Once the comments have been received, the Judicial Conference Advisory Committee will then reconsider its proposal and then potentially move forward with a set of final rules that would then need approval from the Judicial Conference Standing Committee, the Judicial Conference, the Supreme Court, and Congress (implicitly). For any rule change to take effect this calendar year, the Supreme Court’s promulgation of the rules would need to be effective by May 1, 2014.

76 thoughts on “Heightened Pleading Requirements: Patent Reform through the Supreme Court and Judicial Conference

  1. From Law360:

    Ky. To Consider Reining In ‘Patent Trolls’
    A Kentucky state senator has introduced a bill aimed at so-called patent trolls that would criminalize making bad faith patent infringement allegations and making baseless demands for licensing fees, mirroring similar bills under consideration in Nebraska and Oregon.

    1. link to chicagobusiness.com

      A lawyer in his own right, Mr. Brown has an underdog mentality that attracts inventors such as Steven Gold, 49, of Boston. Working with Mr. Brown’s Cascades Ventures Inc. in Northbrook, the nonpracticing physician and medical device inventor has reaped “quite significant” sums, he says, by accusing Walgreen, Whole Foods Market Inc. and other retailers of violating his “brand mapping” smartphone patents that ID nearby store locations.

      Love it. This “non-practicing physician” is the “small guy” here, just struggling to get by while “innovating” computer-implemented junk of the lowest order.

      And wait, what’s this?

      Mr. Brown himself says, “Most patents aren’t worth the paper they’re written on.”

      LOL. But it’s super important to keep the owner’s identity a secret because … principles!

      1. the guy who choose the most secret levels in the Disqus software

        Thereby creating a new machine! Can I haz patent now?

        Seriously, though: trying to equate (a) anonymous comments on a privately administered blog with (b) secret ownership of a government-granted entitlement to sue the public in Federal Court? You’re pathetic.

        But we knew that already. Keep struggling.

        1. I am not the one struggling with the “It’s OK to be intellectually dishonest because this is just a blog” albatross.

          Did I say you were? I seem to recall noting only that you need medical help because you are pathological liar and a paranoid delusional sociopath.

          I don’t know where you dug up this “albatross” but I can guess it’s one of those “voluntary admissions against interest” that you imagine people are always making when they tell you to fck off.

          [your ethics] are in the toilet)

          Why, pray tell, are my “ethics” “in the toilet”? Try to be very specific.

          your belief system taints everything you touch

          That’s exactly the sort of meaningless nutcase insult somebody makes when they are scraping the bottom of the barrel. You’ve been doing that for years.

          Get psychiatrist help, man. Seriously.

          1. The classic AAOTWMI: “pathological liar and a paranoid delusional sociopath

            Nice script Malcolm.

            LOL – lol lol lol.

            No wait,

            lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol lol

            Ahhhh. Priceless.

          2. “That’s exactly the sort of meaningless nutcase insult somebody”

            Oh come on, you give him too much credit. He’s just trying to copy me. Like usual.

          3. Did I say you were?

            Nice (attempted) deflection.

            You would not be able to say precisely that, because the cause of struggle for you does not apply to me. The cause of struggle that applies fully to you is your unwillingness to abide by intellectual honesty in your postings.

            Intellectual honesty should be the standard – every bit on blog posts as in the courts.

            I live that motto. It is a shame that you do not – that you cannot.

            Try copying that.

        2. Funny this, but yet another direct and simple question has been left unanswered…

          So let’s try again:

          LOL – says the guy who choose the most secret levels in the Disqus software days…

          Why was that exactly?

    2. Would an element of proof include that a court of law has determined in a prior case that the patent owner’s case had no merit — like malicious prosecution?

      Reminds me of the antitrust cases where the government had to prove the accused party’s patents were invalid as part and parcel to a showing that what the defendant was doing was not authorized by a valid patent.

  2. Patent litigation has comprised 99.9% of my practice, I’m almost exclusively on the defense side of the docket, and yet I still can’t see the need for this. In my experience, I can honestly say that I’ve never felt there was a problem with the notice pleading standards being too liberal for straight infringement pleading (inequitable conduct is another matter). Indeed, in many cases where the details of the accused products are not publicly known, but the nature of them is enough to make a reasonable allegation of likely infringement, I’m not sure how you can even realistically expect a plaintiff to meet a much higher standard than currently exists (nor would a little more information be important to me as defense counsel). In practice, if there truly is a basic flaw in the plaintiff’s infringement theory, I’ve almost always had success conveying that to the other side (even when they’re the an NPE) very early on in the case and getting the case resolved quickly.

    Indeed, if there’s a problem at all (though I’m not sure it’s solvable), I would say it’s a step further down the line than the pleading phase. Most popular patent venues have local rules already require detailed contentions that are more informative than what is being called for by the above proposals, and it costs little for a defendant to wait to see that first round of cards. The problem I see, however, is that it’s difficult or impractical in most cases to force the plaintiff to fatten up those contentions, give better detail, or even meaningfully limit them to those “preliminary” contentions. In most cases, the contentions can be and are worded with a lot of fluff to allow wiggle room so that the plaintiff need not amend its contentions after further discovery brings unforeseen nuances to light that necessitate small shifts in position (perhaps the best and most time-honored tactic being the one-sentence reservation of DOE as an alternative to literal infringement, but without enumerating a single detail regarding function, way, result (or anything else, for that matter)). Moreover, to the extent that any detail is only learned as the result of discovery, it’s almost by definition enough to warrant an amendment to the contentions should a defendant want to bother the court with a motion to compel the plaintiff to amend its contentions (assuming the plaintiff doesn’t do so on its own accord, which is almost worse, as it often means another round of noninfringement contentions for your client). In other words, the bottom line is that, regardless of what information a plaintiff provides in the first instance — whether by virtue of local rule preliminary infringement contentions, or some yet-to-be-crafted heightened pleading standard — this change is not likely to create any kind of serious impediment to getting through to the discovery phase of trial, which is, of course, where the costs start mounting up for the defendant.

    To me, though I’m not sure there’s really any way (and I’m not sure that there should be) to meaningfully address overzealous litigation practices with more detailed contentions, if a solution were to be crafted, I would think it would have to come in the form of harsher consequences for providing noncommittal contentions. However, enforcing that will be no simple task, particularly when the retort to any such criticism will always be “we need more discovery before we can refine our positions.” Faced with that likely back-and-forth, particularly when the plaintiff’s going to have a fair point most of the time, how can we realistically expect a heightened pleading standard to have any real impact?

    1. Bob, I agree. This is my experience as well.

      Whoever is behind this proposal either does not litigate or intends to erect a barrier that patent owners cannot surmount unless they have conducted thorough reverse engineering in the first place. I, due to the nature of the invention and the infringement, such proofs are not available until after discover, but good cause exists to think there may be an infringement, these rules, if literally enforced, would amount to a denial of due process.

    2. Bob it costs little for a defendant to wait to see that first round of cards.

      Can you be more concrete? Tell everyone approximately how much it costs a defendant from the moment the case is filed to the moment where the defendant gets to “see that first round of cards.”

      Most popular patent venues have local rules already require detailed contentions that are more informative than what is being called for by the above proposals

      And the sky didn’t fall in those venues. On the contrary, those venues are “popular”. So why not have a uniform rule that sets the floor for all venues?

      The problem I see, however, is that it’s difficult or impractical in most cases to force the plaintiff to fatten up those contentions, give better detail

      That’s demonstrably false as venues where similar rules have been implemented have seen the contentions “fattened up” with more details.

      It’s certainly the case that lawyers will be lawyers, and the lawyers inclined to engage in deceptive games will continue to engage in their usual “creative” behavior and push the boundaries of whatever rules are presented to them. That’s no excuse for not having better and more stringent rules. And judges certainly need to step up their policing, particularly where one of the entities is a patent troll with nothing to lose and everything to gain by dragging the defendant through unwarranted discovery.

      Ned: due to the nature of the invention and the infringement, such proofs are not available until after discover, but good cause exists to think there may be an infringement, these rules, if literally enforced, would amount to a denial of due process.

      That’s why we have judges. If someone believes that their “right” to sue somebody for patent infringement based on their “belief” amounts to a denial of their due process, they are free to make that argument to the juge.

      As to inventions which absolutely necessitate court-mandated discovery prior to the plaintiff being able to provide a reasonably detailed description of why the patent is being infringed, those patents are the tiny minority and of that tiny minority most of the patents are junk.

      Again, we come back to the core issue of: who exactly are these people that are going to be so terribly put upon by these rules? Are they poor impoverished people who lack the education to follow these straightforward rules? Are they welfare recipients who could somehow afford to obtain a patent but can’t afford an attorney to prepare a complaint? Or are they more likely to be legally savvy “non-practicing physicians” or patent attorneys with all the necessary tools and financing needed to file a complying complaint?

      1. MM, the costs in many jurisdictions are usually just answering, preparing and serving initial disclosures, and going to the Rule 16 conference in many jurisdictions. After that, you get to see the contentions. I’m not going to itemize it, but it need not be much at all. Moreover, if you had the heightened pleading requirement, you’d still have to respond to the complaint, and may well have to do the Rule 16 conference and initial disclosures while you wait for a ruling on a 12(b)(6) or 12(c) motion.

        As to your next criticism, my point isn’t that the sky fell or didn’t fall in those jurisdictions with Local Patent Rules, it’s that we made rules to force the plaintiff to be more specific, and yet the purposes behind those rules are nevertheless easily (and commonly) frustrated. Moreover, in those jurisdictions, the plaintiff at least gets the benefit of initial disclosures, as well as an opportunity to bring any special discovery considerations to the Judge’s attention at the Rule 16 conference prior to preparing the preliminary infringement contentions, which arguably gives them the critical information that they would be missing at the initial pleading stage.

        As to whether we should expand the local rules model to every federal jurisdiction, I think that goes outside of what I said above, but I would agree that a uniform set of patent rules could be good, though certainly not necessary. I don’t, however, think that folding the patent rules into the pleading requirement makes a great deal of sense, or offers any serious measure of protection beyond the rules themselves. You should also realize that in those jurisdictions without patent rules, you can almost always serve an early contention interrogatory that is just as detailed (or even more detailed) than a given set of patent rules, so in many cases, being in such jurisdictions can actually work to your advantage.

        As to your “demonstrably false” comment, you appear to miss my point. I am not saying that those jurisdictions haven’t seen better contentions than would be provided through notice pleading (which is what I think you’re saying), my point was that — after you get the preliminary contentions — it is difficult and impractical to get the plaintiff to give you better contentions if they weren’t sufficiently detailed the first time around. You can always try to compel more descriptive contentions, but in many cases, it will be a lot of work (and money from your client) to do so, and the new contentions are bound to still be vague and heavily qualified. As a result, in my experience, most defendants don’t bother pressing the issue.

        And as to your concern that a troll can use the current system to drag a defendant through discovery unfairly, that’s certainly true, but in my experience, it’s far more common to have the unfairness stem from the NPE asserting broad and invalid claims than ones that are simply not infringed. Again, if there’s really no argument on infringement, I’ve had considerable success getting the plaintiff to back off quickly. Invalidity is another matter.

        1. Bob, thanks for your well-written thoughts on the subject.

          You can always try to compel more descriptive contentions, but in many cases, it will be a lot of work (and money from your client) to do so, and the new contentions are bound to still be vague and heavily qualified. As a result, in my experience, most defendants don’t bother pressing the issue.

          But if the rule is strongly written and strongly enforced then the plaintiff’s contentions will have to become substantially more specific or the plaintiff’s case will be thrown out at little cost to the defendent (in most cases, the defendent should be entitled to his fees when that happens). Defendants will certainly bother fighting junk contentions when it’s worth it to fight them. If it’s actually the case that no rule regarding the specificity of the complaint can be passed that will make it worth it to defendants to argue that the complaint isn’t suitably specific, then we might as well all give up.

          if there’s really no argument on infringement, I’ve had considerable success getting the plaintiff to back off quickly.

          Correct me if I’m wrong, but you’re a professional patent litigator who is paid the big bucks for that service.

          That’s why I’d like to know: what is the average cost of a defendant to engage your firm to “answer, prepare and serve initial disclosures, and go to the Rule 16 conference”. How many hours does that take? I assume you have to read the patent and discuss the facts with the client and then learn enough about the case to advise the client on strategy before you file anything. Most clients are going to want to save as much money as possible if they don’t infringe or if the believe the patent is invalid. That’s a good chunk of attorney time right there not to mention the court fees. So what is the average cost for a defendant to get rid of the court case when the patentee is dead set and determined to at least get some discovery out of the defendant?

          I assume it’s a tad more cash than most people are carrying around in their wallets. Surely this data has been collected somewhere?

          1. Again, I won’t try to put a number on it, but in the context of patent litigation, it’s a pretty small number. It will always hurt to get a complaint filed against you, but that’s nothing compared to going through discovery in a patent case.

            To get to your more specific questions though, there’s no reason you absolutely must read the patent closely to file the answer, and if the client asks you to hang back on any major efforts until the infringement contentions, there are ways that can be done without putting the client behind the eight ball. Practically speaking though, for the reasons I’ve already stated, there’s usually no realistic hope that the contentions are going to clarify things so much that you’d ever be wise waiting that long to begin familiarizing yourself on the patent and accused products. And that gets us back to my main point: if there’s a glaring lack of merit to the infringement case, in my experience, the defendant will usually be able to see that itself, even before the contentions come in. On the other hand, if that is not the case, then you’ll pretty quickly be able to tell that there will be enough gray area in the claims and how the accused product operates that there will be a plausible infringement claim, and you’ll know that you don’t have a quick out regardless of whether the plaintiff’s contentions show that it is missing some of the facts that it will eventually find through discovery to help it plug the holes and make its case.

            Bottom line: I’m not saying preliminary infringement contentions are not useful to a defendant, nor am I saying it wouldn’t be just as nice to have them when the complaint is filed. I’m just saying that any rule that requires pleading in that detail is likely to still be traversed easily enough that a defendant will still end up having to answer, read the patent, serve initial disclosures, and attend the Rule 16 conference unless the plaintiff is just mistaken as to the operation or details of the accused product, in which case the defendant likely would have been able to get the conversation started in that span of time even if there weren’t a heightened pleading standard.

            1. Thank you for your informative comments.

              In this paragraph,

              “if there’s a glaring lack of merit to the infringement case, in my experience, the defendant will usually be able to see that itself”

              I think you mean “plaintiff.”

              You suggest that better pleading requirements would be futile because it will still require compulsion by the court to force plaintiffs to make specific allegations that can then be addressed. Would a limitation by limitation chart required in the pleading be enough to actually make a difference in practice?

              From Goodlatte’s innovation bill:

              “For each accused instrumentality identified under paragraph (3), a clear and concise statement of–
              `(A) where each element of each claim identified under paragraph (2) is found within the accused instrumentality; and
              `(B) with detailed specificity, how each limitation of each claim identified under paragraph (2) is met by the accused instrumentality.”

              Would that be enough to help some or is it also going to be futile once the plaintiffs find their way around it?

            2. Owen, on the claim chart approach to pleading, it is still would not be effective. The primary issue is claim construction. Until the court rules otherwise, the patent owner is entitled to his claim construction and the question ultimately will be whether there was any merit in his position.

              Thus any dispute about the sufficiency of the complaint will devolve into a claim construction dispute or a dispute about whether the plaintiff was entitled to discovery.

              As with most of Good Latte’s ideas, this one too is not well thought out.

            3. Owen,

              Actually, I did mean “defendant.” My point there was, even without detailed pleading or infringement contentions, in my experience, a defendant can often tell that a plaintiff is operating under a misapprehension about the details of the accused product or manner in which it operates. In those cases, getting the contentions usually just confirms it. However, you can often just get the dialog going before that point and ferret out the misapprehension, and if you are indeed correct, then you can often start working toward an early and relatively painless resolution. Obviously, there are always exceptions, but it’s certainly not such a big problem that I think it necessitates a large shift in the way these claims are pled.

              As to your second question, again, I don’t think the charts are futile. I do think they are helpful in understanding each side’s positions. However, as a measure to try to deter totally meritless infringement claims, I don’t think there’s an awful lot of those out there to begin with, and I definitely am not convinced that requiring a claim chart at the outset of the case is going to be very effective at curbing that type of behavior. To me, it’s just too easy to lard up the a claim chart (regardless of how the governing rule is written) with qualifications even when you’re doing one after the case is already underway, and I have to think that will be even easier to do that when the charts are required to be served alongside the complaint, as a plaintiff can then automatically claim that its contentions are still “very preliminary” given the lack of a chance for any formal discovery.

            4. I won’t try to put a number on it,

              Can I ask why you won’t put a number on it?

              but in the context of patent litigation, it’s a pretty small number.

              Lots of numbers are “pretty small” in the context of full-blown patent litigation.

              Including a standard retainer fee, would you say $50K is about right? Higher? Lower?

              if there’s a glaring lack of merit to the infringement case, in my experience, the defendant will usually be able to see that itself, even before the contentions come in.

              But surely such deficiencies are going to be easier to identify and respond to when the pleading rules are more stringent. To the extent the plaintiff’s theory of infringement is set forth in as much detail as possible right up front, it leaves less for the defendant to guess about and, if the rules are strictly enforced, it prevents the patentee from going on fishing expeditions where its infringement theory is based purely on what it discovers after filing the suit.

            1. Broad refers to old elements.

              The new have to be to the disclosed invention and should only cover that and equivalents, not to any and all structure that may achieve the same result.

              So, broad does in fact imply indefinite as a claim that covers what is disclosed is not broad.

  3. Form 18 is completely outdated and inadequate for modern day litigation, especially in terms of apprising the accused infringer of what patent claims are alleged to be infringed and what products, processes/methods, etc., are infringed by those patent claims. At the very least, the accused should be told what patent claims are alleged to be infringed, and by what products, processes/methods, etc.

    I’m also not opposed to some requirement that the complaint indicate what elements/steps of each patent claim are alleged to be present with respect to which components of the accused product or which steps of the accused process/method, provided this requirement is addressed in a fair and balanced manner, including consideration of the fact that it may be difficult to determine exactly how/whether the steps of an accused process/method infringes without the benefit of discovery, and that there is also the potential for waiver of privilege.

    1. Something not yet stated, but is the Goodlatte measures even necessary if the standards set forth in Iqbal/Twombly are acted upon and fully put into the rules of civil procedure by the Judicial Conference Advisory Committee, receive approval from the Judicial Conference Standing Committee, the Judicial Conference, the Supreme Court, and Congress?

      Oh wait, we already had several people testify before Goodlatte and the rush job of his package as to wait for other factors already in play to take ahold.

      1. is the Goodlatte measures even necessary if the standards set forth in Iqbal/Twombly are acted upon and fully put into the rules of civil procedure

        To the extent that the Goodlatte pleading standards are deemed to be appropriately higher than the “Twiqbal” standards (something many people believe), they would remain “necessary”.

  4. I would like to see another step added to the options.

    Since Iqbal and Twombly deal with heightened standards above the norm (where the issues at hand note that a normal pleading would not be appropriate and that the delicacy of the issues require more than the typical notice pleadings – that is, the topics of those cases have been deemed special), it only makes sense to recognize that normal notice pleading standards are below what Iqbal and Twombly would require.

    The picture here that does not recognize this should be amended to allow for normal notice pleadings.

    Then (but only then), a discussion as to what standard to apply to notice pleadings dealing with transgressions of personal property rights can be entertained intelligently.

    As it is, without the option of the normal notice pleading step, the discussion will be biased. Biased either too strictly, or perhaps too loosely, but biased without all the options is an incontrovertible fact.

    1. Since Iqbal and Twombly deal with heightened standards above the norm (where the issues at hand note that a normal pleading would not be appropriate and that the delicacy of the issues require more than the typical notice pleadings – that is, the topics of those cases have been deemed special), it only makes sense to recognize that normal notice pleading standards are below what Iqbal and Twombly would require.

      You might want to read Iqbal again. Twombley and Iqbal aren’t “heightened” standards – they are the norm since 2009. Form 18 can be viewed as a “reduced” standard that is special for patent cases.

      1. Thanks Leopold.

        The assertion that Iqbal and Twombly are not heightened standards is a reasonable assertion. Of course, you too may wish to review the cases again and differentiate the aspects of ‘official deception’ (Iqbal) and antitrust (Twombly) truly apply to all cases and all pleadings brought before the courts. In fact, you might want to consider the direct language in Twombly and Iqbal to limit their holdings to complaints. See, e.g., McLemore, 2010 WL 1010092, at *13.

        To which I would reply, that the work necessary to reflect this means that we no longer have notice-pleading across the board.

        The Judicial Conference Advisory Committee has a lot more work ahead of it with your reasonable position taken.

        1. In fact, you might want to consider the direct language in Twombly and Iqbal to limit their holdings to complaints. See, e.g., McLemore, 2010 WL 1010092, at *13.

          Well, yes, but isn’t that what we’re talking about? McLemore deals with whether Twiqbal apply to answers pleading affirmative answers, so it’s not really relevant to the present discussion.

          The Judicial Conference Advisory Committee has a lot more work ahead of it with your reasonable position taken.

          All they need to do is follow through with eliminating Form 18 from the Federal Rules, so that patent infringement claims are subject to the same standards as all other claims regarding property. This should have been done several years ago.

          1. Form 18 is not the only place needing updates (as witness by what you want to cut out of the conversation).

            In trying to deny my point, you have succeeded in making it.

            Thanks.

            1. In trying to deny my point, you have succeeded in making it. Thanks.

              As far as I can tell, the only “point” of your second comment was to pretend that your first one wasn’t utter nonsense. But you are welcome.

            2. LB: As far as I can tell, the only “point” of your second comment was to pretend that your first one wasn’t utter nonsense.

              anon seems to think that one can’t have an “intelligent discussion” about fixing Form 18 unless everybody understands his view of the case law …? which he refuses to articulate so we are left to guess as to his logic?

              And then of course he insults anyone who dares to point out that he’s not making much sense.

            3. Nice mis-characterization there Malcolm (per usual). But you really should note that he response at 4.1.1 was not insulting in the least, and that my snark at 3:56 pm was merely in reply to the snark from Leopold.

              Can you post at all without the twisting that you do?

            4. anon: Form 18 is not the only place needing updates

              As noted by the JCAC in Dennis’ original post. So what? There’s no requirement for the JCAC to address every problem at once. The can (and should) fix the glaring, long-standing problems first.

            5. So what?

              LOL – so stop twisting what I present in order to try to denigrate what I say.

              But there is that intellectual honesty thing popping up again…

            6. But you really should note that he response at 4.1.1 was not insulting in the least, and that my snark at 3:56 pm was merely in reply to the snark from Leopold.

              Which was in reply to your condescending comments at 2:56. You really don’t get it, do you?

            7. Nice mis-characterization

              There’s no ‘mis-characterization” of your comment. At best, it was terribly written. Try to avoid the innuendo and word salad and just state what you mean without the innuendo and condescension. Good luck.

            8. There is nothing condescending in my reply at 2:56, Leopold.

              You take umbrage when no reason for doing so is present.

              Shall I ask the same question of you?

              Will I (once again) receive your ‘running away’ answer? Come to think of it, where are the references you were supposed to provide concerning our discussion on the ladders of abstraction?

              Once again, you leap too quickly, and then need to retreat from your error.

            9. Malcolm indulges himself (yet again) in his AOOTWMDs with “ Try to avoid the innuendo and word salad.”

              As shown, the initial exchange was without insult (you were wrong), and I merely provided snark in return for snark.

              Or perhaps you want to declare that you do not use innuendo again (with posts steeped in innuendo) and have Leopold upvote such, and then wonder how he supports intellectually dishonest posts on this blog?

              How do you say that…? Fun games…?

            10. LB You really don’t get it, do you?

              Of course he doesn’t. Patent Jeebus is always right and everyone who disagrees with Patent Jeebus is st00pit and deserving of Patent Jeebus’ condescension. And to prove it, Patent Jeebus will make up whatever lies are necessary for the occasion.

              That behavior is perfectly justified because it’s what Patent Jeebus’ “enemies” do in their endless efforts to steal other people’s personal property. How do we know that? Because Patent Jeebus said so, of course!

            11. the initial exchange was without insult

              My reference to innuendo and condescension related to your original comment. Your insults followed in due course. That was inevitable.

            12. perhaps you want to declare that you do not use innuendo again

              Again? Show everyone where I made such a declaration in the first place.

              Being the blogtroll and sociopath that you are, you habitually try to draw false equivalence between what you do and what your “enemies” do.

              Learn to write like a grown up. That doesn’t mean “use fancier words”. It means take some responsibility for whatever garbage you’re trying to sell here. Grow a spine and write your beliefs in simple declarative sentences rather than burying it underneath layer upon endless layer of “if only everyone understood what I refuse to articulate then you wouldn’t all be so st00pit and biased.”

            13. anon: Being wrong and being offensive is no way to go through life

              Patent Jeebus says I’m wrong and offensive, therefore it must be so. Rinse. Recycle. Repeat.

            14. stop twisting what I present

              Nobody “twisted” anything that you said. I responded directly to something you expressly wrote (“Form 18 is not the only place needing updates”) and I copied what you wrote in my comment so there would be no question about what I was responding to. Rather than respond to my perfectly fair comment you played some pathetic victim card and insulted me. This is what you do here, day in and day out. And then you blame everyone else for your behavior.

            15. you habitually try to draw false equivalence between what you do and what your “enemies” do.

              LOL – another irony factory goes KABLOOEY from the guy who made AOOTWMDs infamous.

            16. Learn to write like a grown up. That doesn’t mean “use fancier words”.

              Does it mean use expletives and chainsaws?

              .

              It means take some responsibility for whatever garbage you’re trying to sell here. Grow a spine

              LOL – like you and your “intellectual dishonesty is OK because this is merely a blog” style? Like you ‘grow a spine’ and take ownership of what you have written? from anything to recognizing controlling law when it comes to the exceptions to the printed matter doctrine and answering the simplest of questions that go to the heart of the software patent issue, to your defending 6’s use of the “N” word?

              You mean like that?

              KA-BLOOEY, Malcolm’s home world of irony factories go up in one massive explosion.

            17. Malcolm prevaricates with “I’m flat out saying that…”

              That’s not an answer to the question.

              But then again, we both know that you will not provide a simple and straight forward honest answer, don’t we?

            18. That’s not an answer to the question.

              Your “question” is just a pitiful, transparent attempt to cover up the fact that you personally attacked me with a specific assertion that you possibly can’t back up without making a total axx out of yourself. This is regular behavior of yours. You’re a pathological liar with paranoid delusional fantasies that everyone else is a liar.

              Get some help, man. You have medical converage, don’t you? Your insurance will likely pay for both the psychiatric exam and the drugs you need to keep you from effing up to so regularly.

            19. where are the references you were supposed to provide concerning our discussion on the ladders of abstraction

              There are lots of resources out there where you can get the medical help you need. Take advantage of them. Now is a good time.

            20. Malcolm continues to prevaricate with “Your “question” is just a…

              LOL – That is still not an answer.

              Simple enough question Malcolm – why are you having such a hard time coming up with the honest answer?

              Um, you do know what ‘honesty’ is, right?

              LOL

            21. I invite Leopold to open his eyes and re-calibrate his “the only “point” of your second comment was to pretend that your first one wasn’t utter nonsense.” with a reading of the Professor’s joint comments on the Proposed Amendments to Federal Rules of Civil Procedure, as provided by Prof. Hricik at:

              link to patentlyo.com

              Once again, the naysayers (Leopold and Malcolm) must retreat from my awesomeness.

              Any time you want to apologize (again) Leopold, feel free to do so.

          2. “you habitually try to draw false equivalence between what you do and what your “enemies” do.”

            LOL – another irony factory goes KABLOOEY from the guy who made AOOTWMDs infamous.

            “In trying to deny my point, you succeeded in making it. Thanks.”

            You need psychiatric help, anon. Dennis has tried to advise you of that in his own gentle way. Take a vacation. This is going to be a rough year for you.

            1. Once again Malcolm, mirroring only works if you are accurate and do not partake in the mantra of “Intellectual Dishonesty is OK since this is only a blog.”

              As they say, it svcks to be you.

            2. mirroring only works if you are accurate

              And you’re the accurate one, of course. Why? Because you say so.

              Get medical help. It won’t cost you that much. You really do need it.

  5. The more I see of Good Latte, the more I dislike. We need to form a PAC to which all patent attorneys could contribute for the sole purpose of ridding the patent community of this public nuisance.

    1. hahahahahahaha, think back Ned, which senator did I say many years ago that I was going to bring concerns to, who at the time was all gung ho pro patent?

      Flip/execute Good Latte and I’ll just get another brosefus.

    2. We need to form a PAC to which all patent attorneys could contribute for the sole purpose of ridding the patent community of this public nuisance.

      Are you going to tar and feather him at the next Super Patriotic Meeting of American Inventor Heroes?

      It’s pretty funny that the guy who wants to limit the ease with which a microscopic minority of people can sue vast numbers of the public is somehow considered a “public” nuisance.

      In fact, he’s a genuine nuisance only to the very tiny but extremely well-fed community of patent system exploiters/grifters/gamblers, and virtually nobody else. Creative people who are trying to protect desired, innovative products they wish to sell will continue to get by just fine.

      1. The “very tiny but extremely well-fed community of patent system exploiters/grifters/gamblers, and virtually nobody else

        is just another flavor of the “what do you have to hide” attempt to have the ends justify the means.

        WHATEVER lives…

  6. There is another clear mis-statement (that I do not have at my fingertips, but posted in detail previously), to the effect that the notice-pleading standard has met its desired goal of having pleadings adequately meet the target form and that was why the form was no longer necessary.

    1. Prof. Hricik’s aforementioned link contains the item that I reference above.

      See footnote 57 on page 17: “fulfilled.”

      As I recall from the earlier conversation, I lambasted the rules committee for shirking their duty (and laid into the Court for being employing excessive judicial activism again – can you say Lochner?). For at least the criticism on the rules committee, it now looks like someone else agrees with me (and of course, per 6 and his usual ‘subjective in the mind’ view, i must have used that time machine yet again to copy this new scholarly note).

    1. I think this is a reference to the Rules Enabling Act.

      Something about the Rules Enabling Act just seems… odd, in the sense that Congress is trying to have its cake and eat it, too. I mean, I understand the value in preventing the courts from devising their own regulations completely independently, since there would be no substantive review of those regulations possible otherwise (i.e., the watchers watching themselves). But it just seems like Congress delegated authority without really delegating it, and in the process, allowed substantive lawmaking to be performed by the judiciary without the executive branch having any say in the process. And since it “just works” for the judiciary (i.e., the alternative at this point would be chaos until the FRCPs, etc., could be made statutory), it’s to their disadvantage to review this entire concept.

      All I could tell from very quick reading on the topic is that review has mostly been based on whether the rule promulgation was proper when considered with respect to state law, which controlled prior to 1934.

      The natural tendency at this point is to ask whether there are similar examples of Congress “delegating authority but reviewing the results” with respect to executive branch rulemaking, but in truth, that actually seems to be a different animal than judicial branch rulemaking, since with judicial rulemaking, the executive is totally removed from the process.

      1. APoTU, I suspect the reason is that Congress does not want the courts creating substantive law in the form of rules.

        But the concern goes the other way as well. Congress trying to enact rules that effectively deny due process. Due process, I think, is a matter for the courts.

      2. The tension is part and parcel of the separation of powers and checks and balances system.

        Reference tyranny and the Federalist papers. When any one branch becomes too strong by being able to write, interpret and enforce law unto itself, even for noble ends, the means employed lead to corruption.

        The ends simply – and incontrovertibly – do not justify the means.

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